If you have a current estate plan, as you know, we recommend that you review it on a regular basis. If there are changes that need to be made, it can be done through an amendment or codicil or through drafting the plan from scratch. Clients often think it is easier (and cheaper) to do the amendment or codicil, but in actuality it can take more time and expense than just starting over.
Amendment or Codicil
When there are only a few changes needed to an estate plan, an amendment or codicil can be sufficient. Additionally, if the desired changes are just replacing individuals listed in various roles within your documents or do not cause too much restructuring of the documents, most often you can accomplish these with an amendment or codicil. It is important to provide your original documents to an attorney to review in order to draft the amendment or codicil. Doing so ensures the new drafts accurately reflect the necessary changes but also reaffirm old wishes.
Starting From Scratch
If, on the other hand, the desired changes are complicated and cause the documents to be completely restructured, you might find that it is easier to execute an entirely new plan. Examples of complicated changes are changes to the distribution of your estate (with regards to both beneficiaries and amounts), changes to the terms of a trust (either to a revocable living trust or testamentary trust), changes that have a ripple effect to other provisions within the document, and changes to previously made amendments or codicils.
The reason why amendments or codicils could prove to take more time and expense is because the drafting attorney has to spend the time reviewing your current documents, identifying the best way to incorporate the new changes, drafting the amendments with specific reference to your old documents and then comparing the documents to ensure any changes made are properly drafted. The primary concern is to avoid confusion when the plan ultimately will be administered. What may seem as one minor change could truly have implications throughout the whole document and therefore, the attorney has to spend a lot of time confirming no other provisions within the document need to be updated. Starting from scratch means that the attorney could save time by disregarding your old plan entirely.
Additionally, many attorneys do not want to amend an old document that they did not originally draft because, by doing so, it can seem as if they are assuming the risk that they are validating the old documents as true and accurate. Many attorneys do not want to take on the liability of someone else’s work.
Lastly, you want to also consider those you have named to administer your estate. You want to ensure that any changes made to your documents will be clear and unambiguous. Making too many changes to your documents through multiple amendments or codicils can cause a lot of complications and confusion for your estate administrator. It can also give rise to potential estate disputes and contests.
If you need to update your estate plan, be sure to contact an attorney to ensure the amendments are drafted properly. However, be aware that if it is recommended to draft a new plan from scratch, doing so may actually save you time and expense.
